Resolution 1992-59
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RESOLUTION NO. 92- 59
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF GILROY AUTHORIZING THE ASSIGNMENT BY THE
CITY OF GILROY OF CERTAIN CONTRACTS BETWEEN
THE CITIES OF GILROY AND MORGAN HILL AND JAMES
M. MONTGOMERY CONSULTING ENGINEERS, INC., AND
AUTHORIZATION TO EXECUTE ASSIGNMENT OF
CONTRACTS, PLANS AND BIDS
WHEREAS, the City of Gilroy, a municipal corporation
("Gilroy"), and the City of Morgan Hill, a municipal corporation
("Morgan Hill") (Gilroy and Morgan Hill shall sometimes be referred
to herein as the "Cities"), have formed the SOUTH COUNTY REGIONAL
WASTEWATER AUTHORITY, a California Joint Exercise of Powers
Authority organized and created pursuant to the laws of the State
of California ("SCRWA"), for the purpose of jointly managing and
running the sewage treatment facilities identified in the Joint
Exercise of Powers Agreement Creating the South County Regional
Wastewater Authority dated May 19, 1992; and
WHEREAS, Gilroy and Morgan Hill entered into the
following: That certain contract between the cities and James M.
Montgomery Consulting Engineers, Inc. ("Contractor") dated May 29,
1991, relating to final design and bidding assistance services, as
amended by letter agreements dated December 26, 1991, February 24,
1992, and January 29, 1992, that certain contract between the
cities and Contractor relating to engineering services dated
February 21, 1992, and that certain contract between the cities and
Contractor relating to consulting engineering services dated
October 10, 1983 to the extent such contract relates to the
municipal wastewater treatment and disposal facilities and
reclamation facilities (all of the foregoing being collectively
referred to as the "contracts");
WHEREAS, Gilroy and Morgan Hill desire to assign to SCRWA
all their respective rights, title, and interest under (i) the
Contracts, (ii) all of the drawings, design documents, plans and
specifications, and other construction documents prepared by
RESOLUTION NO. 92 - 59
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COUNCILMEMBERS: GILROY, HALE, KLOECKER, NELSON, ROWLISON,
VALDEZ and GAGE.
COUNCILMEMBERS: None
COUNCILMEMBERS: None
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Contractor pursuant to the Contracts (including without limitation,
all Contract Documents for the Construction of Wastewater Treatment
Plant-Phase I, Project 1992-01 ("Project"), Bid No. 92-PW-102,
Volumes lA, lB, 2 and 3, prepared by Contractor dated March 1992),
and all amendments, modifications, supplements, general conditions
and addendum thereto, and (iii) all bids received by the cities for
the construction of the Project, including, without limitation, all
bid securities (whether in the form of cash, check or bid bond)
received by the cities in connection with such bids;
WHEREAS, SCRWA wishes to accept such assignment and
assume all of Gilroy's and Morgan Hill's obligations under the
Contracts; and to evidence such assignment Gilroy wishes to execute
an Assignment of Contract, Plans and Bids (the "Assignment of
Contract") .
NOW, THEREFORE, BE IT RESOLVED THAT:
1. The form, terms and provisions of the Assignment of
Contract have been presented to The City Council and reviewed by
The city Council and the same are, in all respects, approved;
2. The city Administrator of Gilroy, Jay Baksa, is
hereby authorized to execute and deliver, in the name of and on
behalf of Gilroy, the Assignment of Contract in the form presented
to The City Council.
PASSED AND ADOPTED this 6th
July
, 1992,
day of
by the following vote:
AYES:
NOES:
ABSENT:
'1J~ .1, ffr
Don Gage
Mayor
~
usanne stei~1Dletz
city Clerk.
RESOLUTION NO. 92-59
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I, SUSANNE E. STEINMETZ, City Clerk of the City of Gilroy, do
hereby certify that the attached Resolution No. 92-59 is an original
resolution, duly adopted by the Council of the City of Gilroy at an
adjourned regular meeting of said Council held on the 6th day of
July ,19~, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
Official Seal of the City of Gilroy this 7th day of July ,1992.
~k~;4:~
(Seal)
agreements dated December 26, 1991, February 24,
1992, and
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ASSIGNMENT OF CONTRACTS. PLANS AND BIDS
For value received, the city of Gilroy, a Municipal corpora-
tion, and the city of Morgan Hill, a Municipal corporation
(collectively "city") hereby grants, assigns, transfers, and
conveys to the South County Regional Wastewater Authority, a
California Joint Exercise of Powers Authority organized and created
pursuant to the laws of the State of California ("Authority") all
of its rights, title and interest and into the following: (i) That
certain contract between city and James M. Montgomery Consulting
Engineers, Inc. ("Contractor") dated May 29, 1991, relating to
final design and bidding assistance services, as amended by letter
January 29, 1992, that certain contract between city and Contractor
relating to engineering services dated February 21, 1992, and that
certain contract between City and Contractor relating to consulting
engineering services dated October 10, 1983 to the extent such
contract relates to the municipal wastewater treatment disposal
facilities and reclamation facilities (all of the foregoing being
collectively referred to as the "contracts"), (ii) all of the
drawings, design documents, plans and specifications, and other
construction documents prepared by Contractor pursuant to the
Contracts (including without limitation, all Contract Documents for
the Construction of Wastewater Treatment Plant-Phase I, project
1992-01 ("Project"), Bid No. 92-PW-102, Volumes lA, 1B, 2 and 3,
prepared by Contractor dated March 1992), and all amendments,
modifications, supplements, general conditions and addendum thereto
(collectively "Plans"), and (iii) all bids received by city for the
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construction of the Project, including, without limitation, all bid
securities (whether in the form of cash, check or bid bond)
received by City in connection with such bids (collectively,
"Bids").
with respect to the foregoing, the parties agree as follows:
1. Authority agrees to (i) perform, keep and be bound by all
of the terms, covenants and conditions contained in the Contracts
to be kept or perform on the part of city therein to the same
extent and effect as if Authority had executed the Contracts as the
original party in place of City; and (ii) indemnify, defend and
hold city harmless from any claim, loss or liability arising out
of or in any way connected with a default by Authority under the
Contracts which shall occur on or after the Effective Date.
2. This Assignment of Contracts and Plans ("Assignment")
shall become effective upon the execution thereof by Assignor and
Assignee and consent thereto by Contractor (the "Effective Date").
3. This Assignment may be executed in counterparts, each of
which shall be an original, but all of which shall constitute one
instrument.
4. In any action between the parties arising out of this
Assignment, the prevailing party shall be entitled to recover
reasonable attorneys' fees actually incurred by such party in such
action.
5. This Assignment constitutes the entire agreement between
the parties hereto relating to the subject matter hereof and
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supersedes all prior oral and written and all contemporaneous oral
negotiations, commitments and understandings of the parties.
6. This Assignment may not be changed or amended except by
a writing executed by both parties.
7. This Assignment shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and
assigns.
8. This Assignment shall be governed by and construed and
enforced in accordance with the laws of the state of California.
9. No delay or failure by either party to exercise or
enforce at any time any right or provision of this Assignment shall
be considered a waiver thereof or of such party's right thereafter
to exercise or enforce each and every right and provision of this
Assignment. To be valid, a waiver shall be in writing, but need
not be supported by consideration.
No single waiver shall
constitute a continuing or subsequent waiver.
10. If any provision of this Assignment shall be held
illegal, invalid or unenforceable, in whole or in part, such
provision shall be modified to the minimum extent necessary to make
it legal, valid and enforceable, and the legality, validity and
enforceability of all other provisions of this Assignment shall not
be affected thereby.
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IN WITNESS WHEREOF, the parties hereto have executed this
Assignment on the dates set forth below to be effective as of the
Effective Date.
ASSIGNOR:
CITY OF GILROY,
a Municipal corporation
Dated:
By:
Its:
CITY OF MORGAN HILL,
a Municipal corporation
Dated:
By:
Its:
ASSIGNEE:
SOUTH COUNTY REGIONAL WASTEWATER
AUTHORITY, a California Joint
Exercise of Powers Authority
organized and created pursuant to
the laws of the State of California
Dated:
By:
Its:
CONTRACTOR'S CONSENT
Contractor hereby consents and agrees to the terms of the
above Assignment. From and after the date of the above Assignment
becomes effective, Contractor agrees to look solely to Authority
for the performance of the obligations assumed by Authority
pursuant to the Assignment, and city shall thereafter be relieved
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and discharged of any and all liability arising under the Contract
whether occurring prior to or after the Effective Date.
CONTRACTOR:
Dated:
JAMES M. MONTGOMERY CONSULTING
ENGINEERS, INC.
By:
Its:
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